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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 100050
Experience:  Lawyer
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I have been separated and then divorced years. We have a

Customer Question

I have been separated and then divorced for 9 years. We have a separation agreement that states that each year we will do a financial review to determine child support and allocation of section 7 expenses (FRA). Obviously things have changed with the FLA - what is the impact to child support requirements? Also, my ex-spouse is 7 months late in providing 2014 tax info for child support calculations. As a result, he has been paying based on 2013 tax info. His income was cut almost in half in 2014 compared to 2013. Do I owe him a refund for what he has paid based on his 2013 (because he didn't provide 2014 on time), or do I move forward with child support based on 2014 tax info now that he has finally provided it?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

Does your agreement provide for what happens if there is a breach of the agreement of if there is a dispute?

Customer: replied 1 year ago.
It just states that all non-court options should be explored prior to seeking court action.
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Debra replied 1 year ago.

Does it require mediation or arbitration?

Do you think you can work this out with your former spouse?

Customer: replied 1 year ago.
I am not sure - I am just wondering if I am obligated to pay back the difference between what he has paid to date and what he should have paid based on 2014 income. (amounts to over $1000 in child support that he has "overpaid") Also does his wife's income come into play on child support calcs? He is claiming he only made $11,000 in 2014 (down from almost $20,000 in 2013).
Expert:  Debra replied 1 year ago.

I know that is what you are wanting to know but as a senior family lawyer I want to help as much as possible.

His spouse's income does not count but if he is deliberately under-employed to reduce support and you can prove this a court would require that he pay support based on his former income.

You may have to pay him back but I cannot review your agreement to see if that is required.

He did breach the agreement and it is not believable that he would pay more knowing he could reduce his support payments simply by providing honest disclosure so I find it highly suspect that he let this go by not providing disclosure on time and I believe a court would as well.

It may make sense to refuse to pay him back and to seek to enforce the order if he refuses to pay you appropriately going forward because his seems to be artificially lower his income.

Do you understand what I am explaining? If not just let me know.

Customer: replied 1 year ago.
I think I understand. Technically he has been in breach every year since our agreement was put in place, as I never receive documentation from him on time (and it hasn't changed in 9 years). I agree that it is likely that he is finding some way to under report his income (he is working for a company that operates on a pyramid scheme). It is my plan to have our separation agreement revisited once I am out of university and employed again. I believe at that time I can request a 3-year financial review and get a court order to stipulate what support should be. I would like to have the annual review process managed by a third party so that I am not writing monthly statements for him to pay what is required. Then the third party can chase down his documentation.
Expert:  Debra replied 1 year ago.

I don't know where you are getting this information but it is not likely that the court will go back three years. That is the most the court can go back but as there is no reason not to address this now the court will not likely go back that far. It is not reasonable for you to wait and take such a risk.

You cannot get a court order to stipulate what the support should be if you have an agreement unless there is a breach of the agreement and you then follow what the agreement says in terms of using out of court routes first. That is why I asked about mediation or arbitration. And it may be that depending on what you agreed to you may only be able to use arbitration and not court.

I think what you need to do is take the agreement, now, and have it reviewed by a local family lawyer as I am concerned you will be very surprised and disappointed if you cannot redress this retroactively and possibly not through a court prospectively.

Separations agreements cannot be revisited. Child support can be varied based on a material change of circumstances though.

And unfortunately there is no third party to chase down his documentation. That is not how this works. In court you have to bring forward the documentation or get an order from the court for him to produce it and even with a court order that you register with your province there is not a lot of hunting down that is going to be done on your behalf.

So please take the time now and go for a consultation with a local family lawyer now. I am not saying you need to retain the lawyer now but you need to have a much more accurate and realistic view of what you may be able to do going forward.

Customer: replied 1 year ago.
Ok - thank you.
Expert:  Debra replied 1 year ago.

I am so sorry to have told you all of this and I know you would rather wait until you are in a stronger position to deal with him but at the same time it just may be too late and so you cannot wait and hope to redress all this unfairness later as you likely cannot.

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